Visibility, accountability and discourse as essential to democracy: the underlying theme of Alan Dershowitz's writing and teaching

Albany Law Review, Summer, 2008 by Alan M. Dershowitz

Louis Brandeis ... could well have been commenting on the comparison between the King wiretap and the Nixon outrages when, in a dissenting opinion condemning all wiretapping, he cautioned nearly a half century ago that:

   Experience should teach us to be most on our guard to
   protect liberty when the Government's purposes are
   beneficent. Men born to freedom are naturally alert to
   repel invasion of their liberty by evil-minded rulers. The
   greatest dangers to liberty lurk in insidious
   encroachment by men of zeal, well-meaning but without
   understanding. (41)

IX. SCAM WARRANTS

Several years later, I proposed warrants as a prerequisite for certain kinds of governmental scams:

   [W]e cannot tolerate a society in which the government is
   empowered to conduct every manner of scam at will and
   without any regulation or accountability. That, in a
   nutshell, is the present situation. Second, it seems unlikely
   that we could realistically do without all scam operations.
   Some are obviously needed to catch predatory criminals,
   especially potential terrorists and assassins.

      There is one possible safeguard that promises significant
   control over "bad" scams while allowing "good" scams to be
   used when appropriate. The object of the good scam is to
   give the predatory criminal the opportunity to do on camera
   what he has already been doing in private. Law-enforcement
   authorities should be required, therefore, as a precondition to
   conducting a scam, to obtain a warrant from a judge
   authorizing the operation. This scam warrant--like search
   warrants and wiretap warrants--would have to be based on
   probable cause for believing that the target of the proposed
   scam is involved in an ongoing criminal activity and that
   hard evidence of this activity cannot be obtained without a
   scam. If probable cause were shown, the judge could approve
   the scam and impose limits--of time, scope, and
   intrusiveness--on its implementation.

      Being forced to obtain a scam warrant from a judge would
   not solve all the problems, any more than the requirement of
   a warrant for searches and wiretaps solved all problems
   associated with these sometimes necessary evils. But it
   would go a long way toward bringing the scam under the
   control of the law and imposing limits on its use.

      The scam will always be with us, as it has been since the
   serpent tempted and tricked Eve into eating the forbidden
   fruit. But the scam as a technique of law enforcement is now
   out of control. Every prosecutor, undercover investigator,
   and policeman ... is free to conduct any scam he sees fit to
   without fear of judicial rebuke. The Supreme Court, which
   gave birth to the entrapment defense, is in the process of
   committing infanticide on it. The courts have virtually
   abdicated all responsibility for controlling abuses of the
   scam.

      ... Legislation is needed to stop bad scams and control
   good scams: the proposal for a scam warrant holds some
   promise. But an informed and concerned public is the best
   protection of our liberty. (42)